Citation Nr: 9829624
Decision Date: 10/02/98 Archive Date: 10/13/98
DOCKET NO. 95-23 902 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Nashville,
Tennessee
THE ISSUE
Entitlement to an increased rating for duodenal ulcer with
duodenitis and esophagitis, currently evaluated as 20 percent
disabling.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
ATTORNEY FOR THE BOARD
C. Hancock, Associate Counsel
INTRODUCTION
The veteran served on active duty from October 1966 to
October 1968.
This appeal initially came before the Board of Veterans’
Appeals (Board) from a rating decision of January 1994 from
the Department of Veterans Affairs (VA) Regional Office (RO),
located in Nashville, Tennessee, in which the schedular
evaluation assigned for the veteran’s service-connected
duodenal ulcer disability was increased from 10 to 20
percent. The Board, in October 1997, by means of a Remand
decision, requested additional development of the evidence.
REMAND
As indicated above, this matter was initially considered by
the Board in October 1997. At that time, the evidence of
record showed that the veteran had alleged that the severity
of his service-connected duodenal ulcer disability had
increased in severity. Pursuant to the Board’s Remand,
certain additional development of the evidence was to be
accomplished. Specifically, it was stated that:
The RO should arrange for the veteran to
undergo a VA examination in order to
determine the nature and extent, as well
as the degree of severity, of his
service-connected duodenal ulcer with
duodenitis and esophagitis. The RO
should also inform the veteran of the
consequences of failing to report for the
scheduled examination. See 38 C.F.R.
§ 3.655 (1996). The claims folder should
be made available to the examiner before
the examination.
In November 1997 the RO forwarded the veteran’s claims folder
to the VA Medical Center (VAMC) in order to schedule the
requested examination. The RO requested the VAMC to comply
with the Board’s Remand instructions. The evidence shows
that the veteran “failed to report,” on December 12, 1997,
for the above discussed scheduled VA examination. The RO, as
shown in a May 1998 Supplemental Statement of the Case
(SSOC), denied the veteran’s claim.
The record is unclear as to whether the veteran was informed
of the “consequences of failing to report for the scheduled
examination.” See 38 C.F.R. § 3.655 (1998).
The Board notes that the United States Court of Veterans
Appeals (Court), in Stegall v. West, 11 Vet. App. 268 (1998),
indicated, in pertinent part, that there exists a
“compelling need to hold...that a remand...by the Board
confers on the veteran or other claimant, as a matter of law,
the right to compliance with the remand orders.”
Additionally, the records reflects that VA Forms 9 and 21-
4138, received in January and August 1997, apparently list
the veteran’s current address. Subsequent correspondence,
dated in May and August 1998, from the RO were mailed were
mailed to different addresses.
In order to ensure the veteran’s right of due process, and to
ensure that VA has met its duty to assist the veteran in
developing the facts pertinent to his appeal, the case is
REMANDED to the RO for the following development:
1. The RO should contact the veteran at
the most current address of record and
ask him if he is willing to report for a
VA examination. He should be informed of
38 C.F.R. § 3.655. The RO should again
ask the veteran to identify the names and
complete addresses of any additional
private and VA medical providers who have
treated him for his ulcer disability
since July 1994. After securing any
necessary release, the RO should obtain
records of any treatment identified by
the veteran. The RO should notify the
veteran that he may submit additional
evidence and argument in support of his
claim. See Quarles v. Derwinski, 3 Vet.
App. 129, 141 (1992).
2. The RO should request the VAMC to
furnish copies of all medical records
covering the period from August 1997 to
the present.
3. If the veteran is willing to report
for the VA examination, an examination
should be conducted by a gastrointestinal
specialist in order to determine the
nature and severity of his service-
connected duodenal ulcer with duodenitis
and esophagitis. The claims folder
should be made available to the examiner
before the examination. The examiner
should also be requested to document
whether the veteran suffers from
impairment of health manifested by anemia
and weight loss; or recurrent
incapacitating episodes averaging 10 days
or more in duration at least four or more
times a year. See 38 C.F.R. § 4.114,
Part 4, Diagnostic Code 7305 (1998). All
indicated studies and procedures should
be undertaken, and the clinical findings
should be reported in detail.
3. The RO should associate copies of all
correspondence sent to the veteran
concerning the scheduling of this VA
gastrointestinal examination with the
claims folder.
Thereafter, the RO should readjudicate the issue in appellate
status. If the benefit sought is not granted, the veteran
and his representative should be furnished a supplemental
statement of the case and an opportunity to respond. The
case should be returned to the Board for further appellate
consideration.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board or by the Court for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans’ Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West Supp. 1996) (Historical and Statutory Notes).
In addition, VBA’s ADJUDICATION PROCEDURE MANUAL, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
ROBERT P. REGAN
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1998).
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